tions were overruled by this court (see 28 R. I. 555, 68 Atl. 431), and said cause was remitted to the superior court, with directions to enter a decree in accordance with its decision. A decree was entered, adjudging said Vincent A. Fitz-Simon guilty of unfaithful administration, and a copy of the same was transmitted to the court of probate of the town of Cumberland, and said decree is still in full force and has never been reversed or annulled. After the entry of the decree of unfaithful administration, the present action was brought upon the bond of said executor, and to the declaration the defendants pleaded: (1) That the executor had fully administered. (2) That the executor had disallowed the claim of said Margaret Fitz-Simon before payment upon evidence discovered after 30 days after the expiration of six months from the first publication by the executor of the notice of his appointment. (3) That the plaintiff had not procured a final decree of the probate court adjudging the defendant Vincent A. Fitz-Simon guilty of unfaithful administration. To the first two of these pleas the plaintiff replied that a final decree of the superior court had been entered declaring the defendant Vincent A. Fitz-Simon guilty of unfaithful administration, and that a copy of this decree had been sent to the pro- | bate court according to law and duly recorded, and that said decree is still in full force. To the third plea the plaintiff replied that the final decree of the superior court had been obtained and transmitted to the probate court of Cumberland according to law, and had never been reversed, annulled, or set aside. To the replications to the first and second pleas the defendant filed a rejoinder, setting up that since the filing of the plaintiff's petition, and the decree thereon adjudging Vincent A. Fitz-Simon guilty of unfaithful administration, said Fitz-Simon had discovered new evidence which warranted, and still warrants, him in disallowing said claim. The plaintiff demurred to this rejoinder on the ground that said rejoinder and the matters therein contained were not sufficient in law to preclude the plaintiff from having and maintaining her aforesaid action. The defendants demurred to the plaintiff's replication to the defendants' third plea on the grounds (1) that said replication contains no new matter and concludes with a verification; (2) that said replication ought to conIclude to the country, instead of with a verification; (3) that it does not appear in and by said replication that said final decree of the probate court of Pawtucket was entered before the commencement of this action. The allegation in the plaintiff's declaration, to which the defendants' third plea relates, reads as follows: "And the plaintiff further avers that the said Vincent A. FitzSimon has been found to be guilty of unfaithful administration as executor of the last Simon." The defendants' third plea reads as follows: "And the defendants, Vincent A. Fitz-Simon and William McCusker, by their attorneys, Bassett & Raymond and Claude J. Farnsworth, come and defend the wrong and injury, when, etc., and crave oyer of said supposed writing obligatory in said plaintiff's declaration set forth, and it is read to them. They also crave oyer of the condition of said writing obligatory, and it is read to them. And they say that they ought not to be charged with said debt by virtue of said writing obligatory, because they say that said Margaret Fitz-Simon, as a creditor of the estate of James A. Fitz-Simon, has not, as provided by law, procured a final decree of the probate court of the town of Cumberland, declaring that said Vincent A. Fitz-Simon is guilty of unfaithful administration of the estate of James A. Fitz-Simon. And this the defendants are ready to verify." And the plaintiff's replication thereto is of the tenor following: "And the said plaintiff, as to the said plea of the said defendants by them thirdly above pleaded, saith that she, the plaintiff, by reason of anything by the said defendants in that plea alleged, ought not to be barred from having and maintaining her aforesaid action thereof against the said defendants, because she says that she, the plaintiff, has procured a final decree of the superior court of the state of Rhode Island declaring that said Vincent A. Fitz-Simon is guilty of unfaithful administration of the estate of James A. Fitz-Simon, and that a certified copy of said final decree of said superior court has been sent and transmitted to said probate court of the town of Cumberland as by law provided, and has been duly recorded by said probate court as therein directed. And the plaintiff avers that said decree is still in full force and has never been reversed, annulled, or set aside. And this the plaintiff is ready to verify. Wherefore she prays judgment and her damages by her sustained on occasion of the nonperformance of said writing obligatory in her declaration mentioned, to be adjudged to her." The defendants' demurrer should have been overruled. The plaintiff's replication does contain new matter, and states in effect, by way of new assignment that although she has not procured a final decree of the probate court of Cumberland against said Vincent A. Fitz-Simon for unfaithful administration, as in said plea alleged, she has procured such a final decree of the superior court of the state of Rhode Island, a certified copy of which decree has been duly recorded in said probate court according to law, and that said decree remains in full force, and this properly concludes with a verification. The second ground of demurrer is untenable, because matters of record are not to be tried by a jury, and therefore the pleadings relating to the same should not conclude to the country; and the third ground of demurrer bate court of Pawtucket has nothing to do | are sustained, and the case is remitted to the with the case. superior court for further proceedings in ac cordance herewith. On Reargument. PER CURIAM. It is not necessary in this case to consider within what period an executor may disallow a claim, on the ground of newly discovered evidence, before payment, under the provisions of Court and Practice Act 1905, 886, when no decree of unfaithful administration for nondisallowance and nonpayment of such claim has been entered against him. Such is not this case, but exactly the reverse. The defendants' motion for reargument must be denied. (29 R. I. 393) RHODE ISLAND HOSPITAL TRUST CO. v. TOWN COUNCIL OF WARWICK et al. The plaintiff's demurrer to the defendants' rejoinder should have been sustained, because the rejoinder tenders an immaterial issue, to wit, whether the defendant Fitz-Simon had discovered new evidence warranting the disallowance of the very claim for the nondisallowance and nonpayment of which he had been adjudged guilty of unfaithful administration. The matter is res judicata, and while said decree exists he cannot be allowed to attack it or override it collaterally. If the parties are compelled to proceed to trial upon such immaterial issue, judgment must be rendered for the plaintiff, irrespective of or notwithstanding any verdict that may be rendered by the jury. Under Court and Practice Act 1905, § 1027, all that the plaintiff need show is "(1) That his claim has been duly filed; (2) that his claim has not been disallowed by the executor or administrator, or has been established by commissioners or by judgment; (3) that a decree of unfaithful (Supreme Court of Rhode Island. Jan. 25, administration has been entered as provided in the next following section, and if the estate be insolvent, he shall also produce a copy of the order of distribution." The plaintiff has complied with the requirements of the statute, but the defendants seek to avoid the effect of the same by attempting to show a disallowance made in the face of the decree. This the defendants cannot be permitted to do. If the defendant Fitz-Simon is aggrieved by the decree of the superior court, and claims that he is entitled to a revision thereof by reason of evidence newly discovered since the entry thereof, for lack of which evidence the decision which culminated in said decree was unfavorable to him, he must proceed by petition filed within one year after the entry of such decree, under the provisions of Court and Practice Act 1905, § 473. 1909.) 1. PERPETUITIES (§ 3*)—REMOTENESS OF GIFTS TO CHARITIES GIFT FOR IMPROVEMENT OF BURIAL LOT. A legacy to a town council to be held by them and their successors in office in perpetual trust for ornamenting and keeping in repair the testator's burying ground, though creating a trust, is saved from the rule against perpetuities private, as distinguished from a charitable, by Gen. Laws 1896, c. 40, § 35. authorizing town councils to receive and hold funds conveypair burial lots, and to execute such trusts; and ed to them for ornamenting or keeping in rethe fact that successive town councils have declined to act does not invalidate the trust. [Ed. Note. For other cases, see Perpetuities, Cent. Dig. § 3; Dec. Dig. § 3.*] 2. TRUSTS (§ 38*)-ACCEPTANCE BY TRUSTEE. petual trust for the repair of the testator's bur Though a legacy to a town council in per ial lot is authorized by Gen. Laws 1896, c. 40, § 35, the court has no power to compel the council to accept the trust, nor to bind a new trustee to act in their place. It thus appears that the ruling of the superior court was such that, if complied with, it would result in submitting to the jury an immaterial and useless issue, the trial of which would involve an unnecessary and useless expenditure of time and money. Such action on the part of the superior court, changing the issue to one not included in the statutory requirements herein before quoted, is not preliminary, but decisive, as it causes a radical change in the suit itself, and an ex-in a reasonable time to accept the legacy. ception to such ruling ought to be heard and determined before further proceedings are had in the original suit. The bill of exceptions plainly raises the question of law, because it refers to the pleadings which are involved in the exception taken. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 54; Dec. Dig. § 38.*] 3. EXECUTORS AND ADMINISTRATORS (§ 303*)— DISTRIBUTION OF ESTATE-MODE OF PAYMENT-PAYMENT INTO Court. On the refusal of successive town councils to accept a legacy to them, to be held in perpetual trust for keeping in repair the testator's burial lot, the executor will be permitted to pay the fund into the registry of the court, in order tunity may be afforded to the town council withthat he may settle his account and that oppor [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 1242; Dec. Dig. ♦ 303.*] Case Certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Judge. Bill by the Rhode Island Hospital Trust Company, as executor, against the Town Council of Warwick, and others. Case certified from the Superior Court. Decree or The motion to dismiss the bill of exceptions upon this ground is therefore denied, the plaintiff's exceptions to the rulings of the superior court in overruling her demurrer and in sustaining the defendants' demurrer dered. Tillinghast & Tillinghast, for complain- | respective towns, as shall be conveyed to ant. them in trust for burial purposes, and, in like manner, may receive and hold all funds PER CURIAM. This is a bill in equity that shall be conveyed to them for the purby the trust company, as executor of the pose of ornamenting or keeping in repair will of Henry W. Greene, late of Warwick, such burial lots or any other burial lots for instructions. The portions of the bill within their respective towns, and execute material to this inquiry read as follows: said trusts in accordance with the terms "Your orator, the Rhode Island Hospital contained in the instruments of conveyance' Trust Company, a corporation created by-would be clearly void for perpetuity, and the General Assembly of this state of Rhode would fall into the residue and go to the Island and located and transacting business residuary legatees, or be distributed as inin the city of Providence therein, comes and testate to the next of kin; and in this case shows to the court: it matters not which, as these are here the same parties defendant. Kelly v. Nichols, 17 R. I. 306, 21 Atl. 906; Sherman v. Baker, 20 R. I. 446, 40 Atl. 11, 40 L. R. A. 717. And the question therefore is: Does the statute save it, so that the court can, by the appointment of a new trustee, or in any other way, provide for its administration; the town council having persistently declined it, and there being, we assume, no power short of the General Assembly that can compel its acceptance, however, obligatory would seem to be its duty, both towards the state and towards its town, to do so." "(1) That Henry Whitman Greene, late of the town of Warwick, in the county of Kent, died there on the 20th day of January, 1897, leaving a last will and testament, which has been duly admitted to probate and remains of record in the court of probate of said town of Warwick, and of which will your orator is the duly appointed and qualified executor, and a full copy of which will is hereto annexed and hereby referred to as a part of this bill of complaint as if fully embodied herein. "(2) That in and by paragraph II of said will the said testator made the following bequest, to wit: 'II. I give and bequeath to the Town Council of said Warwick the sum of Five Hundred (500) dollars to be held by the said Town Council and their successors in office in perpetual trust, to apply the income of said sum to the ornamenting and keeping in repair of my said burying-ground forever.' But said town council, after repeated offers from your orator to pay the said legacy to it, and repeated requests from your orator to it to receive and accept the said legacy, has declined and still does decline to accept the same. "(3) That the widow of said testator has deceased, and your orator, as executor of said will, has paid all of said testator's debts, and all of the other legacies of his said will, except the legacy aforesaid to said town council, and is ready and anxious to render and settle with the court of probate its final account, but is unable to do so without the advice and instruction of this court as to what disposition to make of said legacy so bequeathed to said town council or of the fund remaining in its possession representing the same." After the entry of a decree that the complainant's bill be taken as confessed against each of the defendants, the cause, being ready for hearing for final decree, was certified to this court under the provisions of Court and Practice Act 1905, § 338. As argued by counsel for complainant: "This legacy is plainly a private, as distinguished from a public or charitable, trust, and but for Gen. Laws 1896, c. 40, § 35, which reads as follows: 'Such town councils may take and hold to them and their We are of the opinion that the statute does save it. But in the present condition of the law we have neither power to compel the town council to accept said trust nor to appoint a new trustee to act in their place. As the statute has made provision for such a perpetual trust, a testator has a right to avail himself of such provision by means of a legacy to a town council for such uses in his last will. A valid trust having been created by the will, the fact that the trustee named has hitherto declined to act does not invalidate the trust. Furthermore, the fact that several successive town councils of the town of Warwick have heretofore declined to accept the said legacy does not preclude the possibility that the present or some future town council may accept said legacy and enter upon the performance of said trust. Considering this possibility, and the inability of the complainant to settle its account, we are of the opinion that the prayer of the complainant, viz., "that your orator may be permitted to bring and pay the said sum of money, with such interest, if any, as the court shall adjudge to be rightfully payable thereon or in respect thereof, into the registry of the court," should be granted, in order that the complainant may be permitted to settle its account and be relieved from further responsibility in respect to this fund, and that opportunity may be afforded to the town council of the town of Warwick within a reasonable period of time to accept said legacy as trustee aforesaid. The cause will be remanded to the superior court for entry of a decree in accordance with this opinion. A draft decree may be MCELROY v. McCARVILLE. court as conclusive, does not in any way affect the conclusion arrived at by this court, inas (Supreme Court of Rhode Island. Jan. 20, much as we find, from the evidence and from 1909.) 1. APPEAL AND ERROR (§ 1071*)-HARMLESS ERROR-PREJUDICIAL EFFECT-FINDING. A finding that respondent's answer admitted complainant's ownership of the north part of a gangway and his easement in the south half, even if the admission was not conclusively binding, would not affect the judgment for complainant, where the evidence supported complainant's claim thereto. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 1071.*] the deeds and plats before us, that the complainant's claims as to her title and easement were correctly stated in the bill and supported by the evidence; so that we do not rely upon the respondent's admission as to complainant's title, although we find that such admission was correct as a matter of law. The complainant contends before us that the award of damages by the superior court 2. EQUITY (§ 186*)-PLEADING-ANSWER-AD- under the evidence should have been much MISSIONS. In a suit to determine the rights of adjoining owners to a gangway between the lots, an admission in the answer that complainant owned a part of the gangway in fee and had an easement in another part was binding on respondent. [Ed. Note.-For other cases, see Equity, Cent. Dig. 426; Dcc. Dig. § 186.*] larger. We cannot yield to this contention: First, because the complainant has not appealed from the decree, and therefore we are not called upon to pass upon the question of the increase of the damages awarded; second, because, even if we were, we are satisfied that the superior court was justified 3. APPEAL AND ERROR (§ 878*)-PARTIES EN-in limiting the amount of damages as it did TITLED TO ALLEGE ERROR APPELLEE-IN- in its opinion. The reasons therein set forth ADEQUACY OF DAMAGES. fully justified such limitation. Where complainant did not appeal from the decree, the insufficiency of the damages awarded him will not be considered on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3577; Dec. Dig. § 878.*] Appeal from Superior Court, Providence and Bristol Counties; William H. Sweetland, Presiding Justice. Suit by Ellen McElroy against Michael McCarville. From a decree in part for complainant, respondent appealed. Affirmed. See, also, 71 Atl. 183. The suit was to determine the rights of the parties in a certain gangway between adjoining lots, and respondent's answer admitted complainant's title to the north half thereof and his easement in the south half thereof; but respondent afterward introduced evidence to deny such title and easement therein. Charles E. Gorman, Dennis H. Sheahan, and James M. Gillrain, for appellant. Harry C. Curtis, Walter J. Ladd, and Edward G. Carr, for appellee. PER CURIAM. A full and careful reading and consideration of the pleadings and of the evidence before the master, the master's re port, the opinion of the superior court, and the briefs and arguments of counsel in this cause, convinces us that there was no error in the decree of the superior court, and that the same is fully supported, both as to law and fact, by the case as made. The suggestion by the respondent's counsel that he should not be bound by his admissions in his answer relative to the title of the com plainant as to her ownership in fee simple of the northerly half of the gangway and as to her easement in the southerly half of the gangway, although such admission was regarded by the master and by the superior Upon the whole case, we are satisfied that the decree does justice between the parties, and the same is therefore affirmed. SMITH v. RIVERS. (Supreme Court of Rhode Island. Jan. 25, 1909.) Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Joseph Smith against James M. Rivers, alias, etc. plaintiff, and defendant excepts. Exception susThere was a judgment for tained. Bliss & Walsh, for plaintiff. John C. Quinn, for defendant. PER CURIAM. A careful consideration of the testimony discloses the fact that there is a strong preponderance of the evidence against the verdict. The defendant's exception upon that ground is therefore sustained, and the case is remitted to the superior court for a new trial. SIMONE v. RHODE ISLAND CO. (Supreme Court of Rhode Island. Jan. 7, 1909.) and Bristol Counties; Charles F. Exceptions from Superior Court, Providence Stearns, Judge. Action by Ella Simone against the Rhode Island Company. Verdict for defendant, and plaintiff brings exceptions. Overruled. Dennis H. Sheahan and Gardner, Pirce & Thornley (William W. Moss, of counsel), for plaintiff. Joseph C. Sweeney, for defendant. PER CURIAM. In the absence of special findings, it is impossible to ascertain upon what grounds the jury based their finding for the defendant. We cannot say that the verdict is upon the sole ground that the company was not negligent. It is possible that the jury found that the plaintiff was not injured to any appre ciable extent and was not entitled to any dam [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 610; Dec. Dig. § 219.*] 2. MASTER AND SERVANT (§ 280*)—INJURY TO SERVANT EVIDENCE. The plaintiff while operating a swinging circular saw in the defendant's employ sustain ed personal injuries resulting in the loss of the second and third fingers of the left hand, and the mutilation of the fourth finger so as to render it useless, and caused by the alleged ⚫negligence of the defendant. The plaintiff thereupon brought an action against the defendant and recovered a verdict for $1,000. Assuming all the facts to be as claimed by the plaintiff, held, that the action cannot be maintained, and the verdict is so clearly wrong that the same must be set aside. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 981-986; Dec. Dig. § 280.*] (Official.) Action by Frank O. Young against Ira H. Randall. Verdict for plaintiff. Motion to have verdict set aside granted. Action on the case to recover damages for personal injuries sustained by the plaintiff while operating a swinging circular saw in the defendant's employ, resulting in the loss of the second and third fingers of the left hand and the mutilation of the fourth finger so as to render it useless, and caused by the alleged negligence of the defendant, in that the "saw table was not provided with any standards or upright pieces sufficiently near the path of the saw, so that a log or bolt could rest against the same and be held steadily in place and prevented from swinging in and upon said saw, and thereby said plaintiff's employment was made unnecessarily dangerous." Plea, the general issue. Verdict for plaintiff for $1,000. The defendant then filed a general motion to have the verdict set aside. Argued before EMERY, C. J., and SAVAGE, STROUT, SPEAR, and CORNISH, JJ. Williamson & Burleigh, for plaintiff. A. M. Goddard, for defendant. CORNISH, J. Tort for personal injuries while operating a swinging circular saw in defendant's employ. The defendant is a manufacturer of lumber and manager of the Augusta Lumber Company, which operates a large mill at Augusta. In the spring of 1905 he purchased a lot of standing timber in the neighboring town of Belgrade, and sent a crew there to cut and manufacture the same. Among them was the plaintiff, who was the owner of a team of four horses and of a portable sawing machine driven by a gasoline engine. After working with his team five or six weeks yarding logs, the plaintiff started his sawing machine, and with the assistance of Mr. Weston, the foreman, attempted to saw a small lot of ash logs into shovel handle bolts about 44 inches long. This proved impracticable, as the logs, varying in length from 25 to 30 feet, were too heavy to be handled and sawn easily with his machine, which was constructed in the ordinary way for sawing cord wood, with a stationary circular saw and a push or sliding table. The foreman then suggested the necessity of a swinging saw with a stationary table, and sent word to Mr. Randall through the plaintiff where a secondhand machine of Mr. Randall that sort could be obtained. thereupon procured the saw, and sent it, with necessary shafting and pulleys purchased elsewhere, to Belgrade, and with it went Mr. Dixon, his millwright, who was to have charge of setting it up. The temporary machine was then hastily On Motion from Supreme Judicial Court, constructed. A table or platform about 18 Kennebec County. inches wide and 2 feet high was built of |